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Landlord Tenant Flashcards

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1
Q

Define Lease

What two ways can they be created?

A

A lease given by the landlord (lessor) provides the tenant (lessee) exclusive possession of the premises for a period of time.

Expressly or Impliedly

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2
Q

How is a lease created impliedly?

A

by the conduct of the parties (either NO valid writing or A tenant holds over and the landlord accepts rent)

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3
Q

How is a lease expressly created?

A

By words or in Writing. If term of lease extends beyond one year, Statute of Frauds require it to be in writing

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4
Q

What are the four types of Tenancy for leases?

A

Tenancy in For Years

Periodic Tenancy

Tenancy at Will

Tenancy T Sufferance (Holdover tenancy)

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5
Q

What are the characteristics of Tenancy for Years

A

lease has definite beginning and an end. Must not be years as the title suggests but still a set period. (e.g., the lease expires on a set date or remains in effect only for a set number of months or years).
a. No Notice required is required to terminate a lease for a term of years at the end of the specified duration (termination date known at inception)

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6
Q

What are the characteristics of Periodic Tenancy?

A

can be expressly or impliedly (holdover tenant)

a. Continuous and open-ended
b. No ending date
c. Tenancy automatically renews
d. Notice is required to end, modernly measured by the rent interval

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7
Q

What are the characteristics of Tenancy at Will?

A

Occupation of real property owned by another until such time as the landlord and tenant desire the relationship to end (not a traditional lease, limited protection) No Fixed End Time!!

a. created by agreement between the tenant and the landlord
b. Cannot be transferred by the tenant to someone else since the landlord controls the right to occupy
c. Termination (personal in nature) – Death of T or LL; T commits waste; attempts to assign; LL transfers his interest or the premises

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8
Q

What are the characteristics of a Tenancy at Sufferance (Holdover tenancy)

A

occurs when a tenant remains in possession of the leased premises (“holds over”) after the end of the lease term.

a. not a true tenancy. In most states, if a residential tenant holds over, the landlord may recover possession of the property and receive the reasonable rental value for the holdover period.
b. If the tenant thereafter pays the monthly rent and the landlord accepted the payment, a month-to-month periodic tenancy has now been formed.

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9
Q

What are remedies for LLs at common Law? At modern law?

A

i. Common Law- Self help was allowed to physically remove breaching tenant
ii. Modernly- Don’t take the law into your own hands, take them to court

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10
Q

In general, what are the LL’s duties to the T under common law? Under Modern Law?

A
  1. Common Law: No LL duties unless the lease expressly said so, T has possession and therefore responsibility for premises
    1. Modern Law: (default): Implied Warranty of Habitability (IWH) Covenant of Quiet Enjoyment (CQE)- N/A at Common Law
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11
Q

What Guarantees the premise will be safe, clean and fit for human habitation; Ensures that bare living requirements are met STANDARD: by housing code or court decision (examples: Examples No heat in winter; no running water; vermin; danger to health and human life; trash accumulation; undisclosed lead paint)

A

a. Implied Warranty of Habitability (IWH)

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12
Q

when is implied warranty of habitability (IWH) implied only?

A

in residential leases

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13
Q

How does IWH work when something breaks? (eg. heater breaks during winter)

A
  1. How it works: requires T to give LL reasonable time to fix the problem if LL fails to fix, then T does and deducts cost of repairing the problem from rent owed
    ***** No requirement that tenant vacate the premises
    THINK- more personal and more closely tied to the premises, less severe GENERALLY THE REMEDY IS NOT AN END OF THE LEASE
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14
Q

Define Covenant of Quiet Enjoyment CQE

A

Duty to tenant by LL. A tenant’s right to possess and use his or her property without disturbance. LL promises that the tenant will not be disturbed by the landlord or someone claiming through the landlord (attempted eviction by person with superior title) during his possession

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15
Q

What may a tenant do if CQE was breached and T was actually evicted or constructively evicted?

A

ii. A tenant may treat the lease as terminated and withhold rent if the CQE has been breached by an actual or constructive eviction
iii. Think- broader protection, the habitation and the disturbance of the tenant’s peaceful occupation. Oftentimes more severe, AND OFTENTIMES THE REMEDY IS A TERMINATION OF THE LEASE

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16
Q

Describe Constructive Eviction (CE) (nonfeasance)

A

(nonfeasance) LL allows the premises to deteriorate forcing T from the land Implied in every lease is a covenant of quiet enjoyment
- Withholding something required by statute constitutes CE Nonfeasance

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17
Q

What are the two types of CE?

A

Full CE and Partial CE

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18
Q

Is partial CE a defense to rent? explain

A

NO, its rather an abatement to the rent attributable to that portion of the premises.

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19
Q

Is Full CE a defense to rent?

A

Yes

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20
Q

Describe Actual Eviction (AE)

Is it a defense to rent? Explain

A

(malfeasance) Where LL physically removes T from all or part of the premises. An actual eviction occurs when the landlord, or someone claiming through him, disturbs the landlord in his possession of the property.

Yes, defense to payment of rent
True even if there is only partial eviction

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21
Q

Failure to deliver possession- American vs. English Destruction of the leasehold- no fault of either party. Duties under common law? Under modern law? American rule?

A

a. Common law rule- LL is duty bound to deliver the possession of premises to T
b. Modern Majority- If can not do so, then T is excused from having to pay rent until LL succeeded in delivering possession to premises.
c. American Rule- no obligation to deliver, rather an obligation for T to take it (Min.)

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22
Q

what are offsets?

A

Abatement (reducing or withholding rental payments) – DIY

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23
Q

How are offsets applied at common law? modern?

A

a. Common Law: Promises were independent; if LL didn’t do something, cant touch rent (property versus contracts)
b. Modernly: In all residential leases the LL is to maintain the residential property in a habitable condition (IWH)
1. Can offset costs, provided T gives LL notice and a reasonable time to repair

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24
Q

T or F, General rule: A landlord is not liable to the tenant, or others on the premises with the consent of the tenant, for injuries caused by a condition of the premises

What is the exception?

A

True

except for an undisclosed dangerous condition that is known or should have been known to the landlord, but which is unknown to the tenant.

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25
Q

Early Termination of lease Without Agreement: common law? modern law?

Hint missing tennant

A

i. Common Law-Tenant has duty to find replacement tenant or continue to pay rent
ii. Modern Jurisdictions- Landlord has duty to attempt to mitigate damages- try to relet

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26
Q

generally what are the two main duties a T owes a LL?

A

generally to pay rent and not commit waste

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27
Q

For a T’s duty to pay rent what is the T’s duty Common Law Estate Theory? Under Modern Theory?

A

a. Common Law Estate Theory- Absolute duty, even if the leased premise is destroyed
b. Modern Theory- No duty to pay rent if premise destroyed UNLESS Tenant was the cause of the destruction

28
Q

Duty by the tenant owed to the landlord to avoid/not commit waste- major concern- what are the 3 types?

A

Voluntary waste

Permissive Waste

Ameliorative Waste

29
Q

What is voluntary waste? What is T liable for?

A

Something T is doing to the land, cannot intentionally or negligently damage anything on the property
1. T is liable for the cost of correcting what they have done, their duty was to avoid this damage

30
Q

What is permissive waste? What is T obligated to do to prevent it?

A

T is obligated to take reasonable steps to guard against damage to premises and make reasonable repairs when needed prevent future damage
1. failure is permitting something to happen when he is in the best position to correct

31
Q

What is Ameliorative Waste? what can LL sue for?

A

T alters or improves the leased premises

1. LL can sue for cost of restoring land back to original condition.

32
Q

A chattel that has become so connected to real property that a disinterested observer would consider the chattel to be part of the realty is defined as ?

A

a Fixture

33
Q

What is the common law approach for fixtures? modern approach?

A
  1. Common Law: anything affixed to the land had to stay, if T made improvements to the land, had to stay at expiration of lease
  2. Modern Law: Anything can be removed as long as can be left in substantially the same condition as when arrives. Especially when dealing with a commercial lease.
34
Q

T or F Mortgage- if the chattel is attached to land that is already encumbered by a mortgage, the mortgage now extends to the fixture. UCC 9- Secured Transactions is beyond LL/T

A

True

35
Q

Express covenants can be made among the LL and T, but in a General Covenant what is the T responsible for?

A
  1. General Covenant- T is responsible except for normal wear and tear (carpets, paint) and acts of God (EG- T is responsible for lightbulbs, broken windows due to T negligence- LL is responsible for plumbing, utilities, appliances)
36
Q

Explain repair without exception. what is the exception

A

T is responsible regardless, rare Defaults- including implied covenants- impose duties on LL

37
Q

________________ occurs when the tenants transfers ALL of his interest, or the balance of his interest in a property

  1. THERE IS PRIVITY OF ESTATE WITH THE ASSIGNEE or P/E
  2. THERE IS PRIVITY OF CONTRACT WITH THE TENANT P/C
A

Assignments

38
Q

When does a sublease occur? Is there privity?

A

occurs when the tenant transfers SOME of his interest, NOT the balance of his interest in a property THERE IS NO PRIVITY WITH THE SUBTENANT.

39
Q

What is the Dumpor’s rule for assignments?

A

C. Dumpor’s rule: A condition against assignment (language expressly stating “no assignments)” is “entire and indivisible,” and having once been waived (by the landlord), cannot be enforced again

40
Q

If LL and T enter into a lease with an anti-assignment clause. LL gives permission to T1 who then assigns to Assignee. T1 is assignor. Assignee assigns to 3rd party. Can LL object to 3rd parties occupancy?

A

No

41
Q

What is the exception to the Dumpor’s rule?

A

LL can put limits “for this time only” then the condition resets, rather than get waived. ( in this case LL waives his right to object to 3rd party subleasing one time only!)

42
Q

T or F absent a lease term to the contrary, it was permissible for the developer, as landlord, to assign his lease interests to the business investor, who then became the new landlord under the lease agreements.

A

True

43
Q

What type of lease only terminates when one of the parties attempts to assign his or her interest.

A

At Will Tenancy

44
Q

Under what conditions is a partial construction eviction prevalent?

A

When the tenants are only constructively evicted from part of the premises, there has been a partial constructive eviction.

45
Q

Under the majority rule, if a tenant is constructively evicted from part of the premises, the tenant may receive?

A

a rent abatement, but is not relieved of all liability for rent

46
Q

Where the landlord fails to maintain the common areas used by all tenants such that the tenant breaches the covenant of quiet enjoyment, will this be considered a constructive eviction.

A

Yes

47
Q

Despite the prohibition on voluntary waste, natural resources may be consumed in what three situations?

A

(1) for the repair and maintenance of the property; (2) with permission of the grantor; or (3) under the open-mine doctrine. (which applies to both life tenants and tenants for years.)

48
Q

What is the open mines doctrine?

A

If the grantor was exploiting the natural resources of the mine, it is presumed that the grantee has the right to continue that exploitation

49
Q

On December 15, a landlord and tenant entered into a lease for a period of one year, beginning at the start of the calendar year, with rent to be paid on the first of each month. One month before the end of the lease term, the tenant called the landlord and the two agreed to renew the lease for another year at the same terms. What type of lease is this?

A

Term of Years

50
Q

On July 1, a college senior entered into an oral agreement with a landlord to lease an apartment near her college campus for $750 per month for a period of one year, starting immediately. At the end of the year, having found a job nearby following her graduation, the college senior began looking for a new apartment. Because she did not find one right away, however, she remained in the apartment through the month of July. She did not, however, pay any rent to the landlord. what is the relationship between the LL and the tenant on Aug 1

A

Tenant is a Tenant at sufferance and LL can evict her immediately

51
Q

A tenant leased a house in a suburban neighborhood from a landlord. The lease was silent as to which party bore the responsibility to make repairs. One day, a group of neighborhood kids were playing baseball in the street when an errant ball went through a second-floor window of the tenant’s house. The tenant replaced the broken window pane at a cost of $300 and deducted the amount from the next month’s rental payment. The landlord then sued to recover the $300 from the tenant.

Will the landlord prevail in recovering the $300 against the tenant?

A

Yes Under the common law rule, in the absence of contractual terms to the contrary, a tenant has a duty to make minor repairs to keep the leased premises wind and water tight. This responsibility arises from the tenant’s duty not to commit waste. In this case, given that the lease did not state which party would be responsible for making repairs, the default common law rule applies, and the tenant is responsible for repairing the window. Because liability for the broken window lies with the tenant, the tenant may not deduct the cost of making the repair from the rent payment.

52
Q

A landlord and tenant entered into a residential lease agreement. According to the terms of the agreement, the lease would continue until the landlord, in his sole discretion, terminates it by providing 30 days’ notice. Two years later, the tenant received a new job and moved out of state, assigning the lease to a new tenant and notifying the landlord. The landlord then filed an action to evict the new tenant. Can he evict the new tenant?

A

yes because the lease was terminated when the tenant assigned it to the new tenant.

53
Q

EXAM TIP: How to approach a landlord-tenant question: 3 Steps

A

Step 1: Identify the type of tenancy involved (creation/term/termination).
Step 2: Which of the four basic disputes might be involved?
o Rent
o Condition of the premises
o Possession of the premises
o Improvements
Step 3: Has the landlord/tenant transferred their interest in the property? Know the effects of the transfer

54
Q

Explain creating a lease

A

o A lease can be oral or in writing. A writing is required for a lease term longer than one year.
o An implied lease may occur through the conduct of the parties, e.g., where the written lease is never signed, but the tenant pays rent periodically, creating a periodic tenancy.

55
Q

EXAMPLE: T leases the property for three years from LL, moves in on January 1st of Year 1. On December 31st, of Year 3, that tenancy automatically ends without any act or giving of notice by LL or T. What kind of lease is this?

A

Tenancy in years or term of years

56
Q

 Tenancy for Years = The tenant is liable for all unpaid rent in the lease.
EXAMPLE: If a landlord and a tenant have a five-year lease and, one year in, the tenant moves out, the tenant still owes

A

hook for the four years remaining on the lease.

57
Q

 Periodic Tenancy

EXAMPLE: T has a month-to-month tenancy. T pays rent to LL in the amount of $1,000 per month. On January 1st T pays his rent to LL. On February 1st T pays his rent to LL. On March 1st T pays his rent to LL. On March 31st, T moves out. What if anything does T owe?

A

T will be liable to LL for an additional month’s rent.

 Periodic Tenancy = The tenant is liable for the rental obligation up until proper notice is given to terminate the lease.

58
Q

The tenant is liable for the amount of rent stated in the agreement that is already owed. Generally, under this type of tenancy, rent is usually not money—e.g., T can stay as long as T gardens the property. Type of Tenancy?

A

Tenancy at will

59
Q

EXAMPLE: T had a one-year lease with LL; T’s rent was $1,000 per month. T holds over and LL does not want T to stay. This creates a tenancy at sufferance; therefore, T is liable for the reasonable rental value of the property. Even though T’s initial lease was $1,000 per month, if the value of the rental has increased to $1,500 per month, T will be liable for

A

$1500

60
Q

EXAMPLE: T had a one-year lease with LL; T’s rent was $1,000 per month. T holds over and LL wants T to stay. This creates a?

A

This creates a month-to-month tenancy with a rental obligation of $1,000 per month.

61
Q

what are the common tenant defenses?

A

Failure to deliver possession of the premises
Tenant has been Evicted
Tenant surrenders premises to Landlord
Warranty of Habitability
Destruction
• Impossibility, impracticability, and frustration of purpose.
• Violation of quiet use and enjoyment of the property

62
Q

EXAMPLE: Auditions for a role in a Broadway play are being held in a room next door to a rented room where silence was required. The landlord renting out the premises should have known of the conflict.
o Total Constructive Eviction -
o Partial Constructive Eviction

A

Total Constructive Eviction - Defense to the payment of any rent.

Partial Constructive Eviction-Reduction in rent only.

63
Q

Explain the Tenant Surrenders Premises to Landlord Defense

A

 Tenant Surrenders Premises to Landlord
• In order to claim this defense, the landlord must accept the surrender and retake possession of the premises.
• The landlord will typically be required to mitigate damages via contract law

64
Q

Explain destruction defense: Common Law? Modern Law

A

• Common law: Generally, did not excuse payment of rent because the tenant was still in possession of the actual land.
• Modern law: No distinction is drawn between leasing all or a portion of the building. Destruction will be a defense to payment of rent.
o Exception: If the tenant intentionally or negligently causes the destruction.

65
Q

• Condition of the Premises and Who has the Obligation to Maintain
o Landlord’s Obligations

A

o Landlord’s Obligations
 Common law: Absent an express promise in the lease, the landlord has no obligation to maintain or repair leased premises.
 Modern law: An implied warranty of habitability and other statutory obligations may apply.
 Additional Liability in Tort:
• Tort land occupier duties owed (invitees, licensees, trespassers). Who owes the duty? Not the owner, but the possessor. During the lease, the tenant has possession so the tenant owes the duties.
• The landlord retains a duty for common passageways and other areas under the landlord’s control (stairs, hallways etc.).
• If the landlord rents the premises with a known defective, dangerous condition not readily apparent to the tenant, the landlord retains liability until the tenant has had reasonable time to inspect and repair.

66
Q

Condition of the Premises and Who has the Obligation to Maintain: Tenant’s Obligations?

A

o Tenant’s Obligations
 Common law: No obligation to repair the leased premises.
 Duty to Avoid Waste:
• Voluntary Waste: The tenant is liable if the tenant intentionally, or negligently, damages the property.
• Permissive Waste: The tenant must take steps to guard against damage to the property.
• Ameliorative Waste:
o Common law: The tenant had no obligation to make improvements and the landlord could hold the tenant liable.
o Modern law: The tenant can make improvements if expressly authorized, or if there is a change in circumstances that warrants the improvements to be made (provided that the improvement does not depreciate the value of the property).

67
Q

T or F o Rule: The landlord can retake the property if the tenant has committed a material breach of the lease.

A

True

Property law (9 decks)

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